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2016 (9) TMI 1018 - CESTAT AHMEDABAD

2016 (9) TMI 1018 - CESTAT AHMEDABAD - TMI - Refund claim - unjust enrichment - whether the refund sanctioned by Assistant Commissioner is wrong, since the appellants have not proved that they have not passed on the duty burden - duty paid under protest - refund pertains to refund of pre-deposit amount - only - Held that:- it is found that the respondents have not produced any specific documentary evidence to prove that the duty has not been passed to other person/ buyer to nullify the doctrine .....

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-6 challans for payment under protest as prescribed under Rule 233B of the Central Excise Rules, 1944. The Hon’ble Supreme Court in the case of Mafatlal Industries Limited vs. UOI [1996 (12) TMI 50 - SUPREME COURT OF INDIA] and in the case of Sahkari Khand Udyog Mandal Limited vs. Commissioner [2005 (3) TMI 116 - SUPREME COURT OF INDIA] held that no refund can be made unless it is established that burden of duty is not passed on to others. Therefore, in view of the same, we find no infirmity in .....

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Appeals) wherein he allowed the appeal filed by Revenue before him. The issue involved is whether the refund of ₹ 7,00,873/- sanctioned by the Assistant Commissioner vide his order dated 03.08.2012 is wrong since the appellants have not proved that they have not passed on the duty burden and therefore, the refund claim is hit by the principles of unjust-enrichment. 2. Heard both sides and perused the records. 3. The ld. Counsel for the appellants submits that they were forced to debit the .....

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Section 11B of Central Excise Act, 1944, refund application should be accompanied by documentary or other evidences to establish that incidence of duty has not been passed on. It is also specifically provided under Section 11B (2) that the refund amount shall be credited to the Welfare Consumer Fund unless, interalia, the burden of duty has not been passed on. He therefore, contends that the burden to prove that the duty incidence has not been passed on is squarely on the appellants and they hav .....

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efore the Commissioner (Appeals), who allowed the same by the impugned Order-in-Appeal. It is observed that the Central Excise officers during the preventive checks carried on 27.09.1997 noticed that the appellants had collected ₹ 2.00 per Kg. on clearance of Texturised Yarn in the guise of PME charges from their customers towards Octroi and Transport charges and have not paid Central Excise duty on the same. The appellants debited the duty of ₹ 4,19,235/-, and ₹ 2,81,635/- thr .....

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